' IBAD-UR-REHMAN LODHI, J.---Waleeqa was born to the petitioner in 2001 but was given to the custody of her sister Mst. Shahnaz, who was issueless. Mst. Shahnaz was the wife of Mansha Masih- respondent No,1 and it is that couple, who brought up the minor. Unfortunately, Mst. Shahnaz died almost three years back and after one and a half year of her death, Mansha Masih contracted marriage with one Mst. Sofia. Such turn in the family of Waleeqa prompted the petitioner to ask for the custody of the minor mainly on the ground that when Mansha Masih contracted second marriage, his second wife entered in his house with her two sons, who were strangers at least to Waleeqa and she cannot be permitted to live in such company.
' Rawalpindi was not acceded to by a learned Additional Sessions Judge, who vide order dated 27- 3-2012 dismissed the same leaving it for the petitioner to file a proper petition under the provisions of Guardians and Wards Act, if so advised. The same relief is being sought by filing the Constitutional petition and the same arguments are repeated here in support of the petition.
3. After hearing the arguments of the learned counsel for the petitioner,, I have interviewed Waleeqa in my Chamber. She seems to be a brilliant baby and according to her, she is getting education in 7th Class in Army Public School, a well reputed Educational Institution of the Town. She has always been amongst the position holder students. I have inquired from her as to how she is treating Maqsooda and Pitras, to which she has categorically replied that they are strangers to her and she always treated Mansha Masih as her "Papa". She feels comfortable while living with Mansh Masih and Mst. Sofia. With regard to the behavior of Mst. Sofia, she claims that she is being treated like her real daughter and every sort of attention is being extended to her by Mst. Sofia and Mansha Masih. She seems to be composed and comfortable in the company of latter mentioned couple.
She has confirmed that the two sons of Mst. Sofia are residing with her paternal grand-parents in Faisalabad and here at Rawalpindi the family who is permanently living consists of Mansha Masih, Mst. Sofia and herself. Mansha Masih has also been interviewed and he in clear terms stated that he always treated Waleeqa as his real daughter and has devoted his remaining life for her welfare.
With regard to his second marriage, he disclosed that it was only for the welfare of Waleeqa and to provide her a company of an experienced lady as in the age in which Waleeqa is entering she would be definitely in need of some expertise of an experienced lady. He confirms the position that two sons of Mst. Sofia at the time of his marriage with the said lady were shifted to Faisalabad with their grandparents and here in Rawalpindi Mansha Masih and Mst. Sofia are living with Waleeqa.
The baby Waleeqa entered into her conscious life while living with Mansha Masih and Mst. Shahnaz and according to her she has always treated the said couple as her Mama and Papa and during whole of this time, it was Mansha Masih, who was responsible for providing all sort of necessities of life to Waleeqa. Pitras and Maqsooda, who are claimants of the custody of Waleeqa have never taken any interest in the welfare of their child, who was being looked after properly by respondent No,1 and his wife and welfare of minor, which is the prime consideration in such like cases would be with Mansha Masih and Mst. Sofia. To my understanding if at this stage the custody of Waleeqa is shifted it would definitely result in breaking of her personality and in future a brilliant student would be going to loose her psychological balance, which naturally would be against the welfare of minor. She is 12-years of age and is competent to express herself, which she has done before me.
The apprehension shown by the petitioner of presence of two sons of Mst. Sofia in the house of Mansha Masih has no basis and if such persons are not there and Mst. Sofia is looking after her in a proper and appropriate manner, the welfare of the minor Waleeqa, who like to be called as Waleeqa Mansha lies while she would continue to live with respondent No,1 as she is in comfortable position in the present circumstances would be properly safe-guarded. In exercise of parental jurisdiction, I deem it proper that custody of such child at this point of her age would not be disturbed. The welfare of the minor is the paramount consideration in determining her custody. The custody of minor can be delivered by the court only in the interest and welfare of the minor and not the interest of the parents. In this case, the minor had admittedly been under the care of respondent No,1 and his wife since when she was only two and a half years of age and the petitioner has never bothered to share any of his responsibility in up-brining the child. Thus, the welfare lies while the minor would remain in the custody of respondent No,
1. The preference of the minor is another consideration, which should be given weight and as earlier noted Waleeqa has in categorical terms preferred to live with respondent No,1 instead of the petitioner. I am fortified while holding this view by the judgment passed case of "Mst. Nighat Firdous v. Khadim Hussain" (1998 SCM R 1593). The apex Court in case reported as "Sh. Abdus Salam and another v. Additional District Judge, Jhang and 2 others" (1988 SCM R 608) has in similar circumstances found that where any parent has permanently handed over his any issue to their some issueless relatives out of love and affection then the real parents were not justified to claim return of the child after a considerable time the minor spent with their foster parents. In the reported matter, the preference given by the child was also given weight and the custody of minor was ordered to remain with the foster parents, who were providing the minor education, and are socially and economically of a status to bring her up properly and keeping in view the paramount consideration viz. The welfare of the child, the custody from such foster parents was not disturbed.
4. Resultantly this petition fails and is dismissed.
5. The petitioner would further be entitled to see Waleeqa subject to such terms and conditions as would be determined by the learned Guardian Judge upon application, if moved, in this behalf by the petitioner.